Last updated 14 September 2020
Many decisions affecting the environment are based on relatively broad discretionary decisions of government officers, local governments, ministers or cabinet.
Effective political campaigns have been responsible for many environmental victories, such as the successful campaign to stop the damming of the Franklin River in Tasmania at the beginning of the 1980s. In Queensland, the campaign during the 1970s to protect Fraser Island from sand mining and logging eventually led to the island being declared a national park and World Heritage area.
Effective political campaigns to protect the environment generally involve great tenacity and determination from an individual or a small group. Financial, legal and scientific resources are often very limited, whereas the opposition (e.g. a large developer) may have all of these readily available.
Tips for political campaigns:
- determine a clear, rational and achievable objective
- know who the relevant decision makers are (e.g. the local government, a government official, local member or minister) and individually target them according to their role or ability to influence the process
- maintain a rational, factual basis for the argument being advanced
- avoid purely emotional arguments, instead, gather the facts and base your argument on them
- be reasonable (developers have rights and legitimate expectations too)
- contact others who may be concerned with the proposal (e.g. neighbours, community and conservation groups) and gather opposition to the proposal
- use media effectively to publicise the issues, particularly the community interests at stake.
Because local government planning schemes provide the principal guide to where different types of development should occur, it is very important to lobby local governments and their staff for sound environmental protection and biodiversity conservation whenever a planning scheme is made or reviewed (see Submission about a Planning Scheme section).
The legal system provides avenues to enforce environmental laws and to challenge government approval of development affecting the environment.
Public interest litigation under a variety of legislation to protect the environment involves three main types of proceedings in courts or tribunals:
- challenge the merits of government decisions about the environment (i.e. whether the decision was right or wrong based on the facts of the case)
- challenge the legality of government decisions about the environment (i.e. judicial review to examine whether the decision maker followed the correct legal procedures and considerations but not directly whether the decision was right or wrong)
- enforce the law by civil action or criminal prosecution where government regulators fail to do so (e.g. by seeking an injunction to restrain an activity impacting on the environment).
Litigation against development or government decisions about the environment is typically difficult, emotionally and financially draining, and it is best viewed as a last option. Lobbying relevant government decision makers, including local governments making planning schemes, is generally preferable and much less costly. Negotiations with developers may also achieve better environmental outcomes for a proposed development and avoid the need for litigation.
If political campaigns and negotiation with the developer fail to achieve a satisfactory outcome, litigation may be the only option to protect the environment. However, litigation does not guarantee this result. In particular, appeals against approval of development that is consistent with a planning scheme will generally fail. Litigation typically takes time, money and a great deal of commitment. You should carefully weigh up these issues and the realistic prospects of success before deciding to litigate. Seeking legal advice and representation is highly recommended if you do decide to litigate.
Taking legal action to protect the environment depends on having a claim recognised by law (a cause of action) and a court or tribunal to bring the claim in.
The Queensland Planning and Environment Court is the most important court for environmental disputes and hears several hundred appeals each year about planning matters under the Planning Act 2016 (Qld) (Planning Act) and related legislation.
The Land Court of Queensland hears objections to mining leases and petroleum leases.
The Federal Court has jurisdiction for the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), including injunctions to restrain offences against the Act (s 475).
The following Figure shows the hierarchy of the main courts and tribunals relevant to environmental disputes in Queensland. (Click image to see larger version)
Standing is the legal right to bring and maintain an action in a court. If a person or organisation seeking a remedy does not have standing, a court will not allow the case to be heard.
In civil proceedings, common law traditionally required some personal or proprietary interest to have been affected rather than an emotional or intellectual concern (e.g. concern for the environment generally). That is, a court required a special interest in the subject matter of the proceeding.
However, courts increasingly adopt a liberal interpretation of this test to grant standing for organisations working to protect the public interest in cases challenging the lawfulness of the exercise of executive power.
Many statutes now widen standing for environmental issues:
- Any person who makes a properly made submission on an impact assessable development application under the Planning Act has standing to appeal a decision to approve the application or join an appeal by another person about the development.
- Any person may seek a declaration from the Planning and Environment Court under s 11 of the Planning and Environment Court Act 2016 (Qld) (Planning and Environment Court Act) if the correct procedures are not followed in assessing a development application (e.g. if an impact-assessable development is treated as code assessable). This is a limited process akin to judicial review that cannot challenge the merits of the decision (see Eschenko v Cummins & Ors  QPEC 37 at -).
- If development occurs without the correct approvals in place or the conditions are breached, any person may also apply to the court under s 180 of the Planning Act for an enforcement order to stop the commission of a development offence.
- A public interest litigant may apply to the court under s 505 of the Environmental Protection Act 1994 (Qld) to remedy or restrain an offence against that Act.
- Any person may apply to the court under s 173D of the Nature Conservation Act 1992 (Qld) to restrain an offence against that Act.
- Any conservationist or conservation group may apply to the Federal Court under s 475 of the EPBC Act for an injunction to remedy or restrain an offence or other contravention of that Act.
Costs mean the legal expenses of bringing or defending an action in a court. It does not include payment for a litigant’s own time in conducting the litigation. The normal costs rule refers to the situation in most court actions where the losing side must pay the legal expenses of the other side (as well as its own legal expenses). The own costs rule refers to the situation in some courts (including the Planning and Environment Court) where each party bears only their own legal expenses. Most courts apply the normal costs rule.
The Planning and Environment Court has an own costs rule under s 59 of the Planning and Environment Court Act . This means that parties generally bare their own costs irrespective of the outcome of the proceedings. There are limited exceptions to this rule, such as where proceedings are considered by the court to be frivolous or vexatious or a party defaults on the court’s procedural requirements.
Security for costs
Security for costs is the provision of security (whether by payment of money into a nominated bank account or otherwise) to ensure that the plaintiff can pay the costs of the defendant should the plaintiff’s case fail. Failure to provide security for costs can lead to a case being stayed (halted) or dismissed. It can amount to a considerable amount of money and be a significant barrier to public interest litigation to protect the environment.
Security for costs may be an issue where an incorporated association seeks an injunction to restrain a proposed development. Courts are wary of $2 companies shielding litigants from liability for costs.
Private individuals will not generally be required to provide security for costs, as it is a well-established principle that poverty should not be a barrier to litigation. However, that person will need standing and will bear the risk of an adverse costs order that may result in bankruptcy, which is a strong disincentive.
Chapter 17 of the Uniform Civil Procedure Rules 1999 (Qld) limit the grounds upon which security for costs will be required, including considering the genuineness of the proceeding and whether it involves a matter of public importance.
Undertakings as to damages
Getting a case heard by a court will normally involve a delay of two to six months from the time the action is started until the court hearing. If the development sought to be stopped will occur within that time, it may be necessary to seek an interim (also interlocutory) injunction to halt it.
Subject to limited exceptions, courts will normally require any person seeking an interim injunction to provide an undertaking as to damages, which is a promise (backed by proof) to pay the costs incurred to the developer because of the delay, should the final action fail. For a large development, this may be a considerable sum of money.